The federal government has created a new version of the Employment Eligibility Verification Form I-9, which employers should begin using immediately.
The U.S. Citizenship and Immigration Service issued a notice in the Federal Register on March 8 that employers should start using the newest version of the I-9 now. The absolute deadline for using the new form is May 7.
Features of the new form
The new form has “Form I-9 03/08/13 N” in the lower left corner of each of its pages. Copies of old forms remain in circulation, so employers should carefully check to make sure they are using the newest version. Penalties for using old forms or incorrectly completing new forms are up to $1,100 for each form.
Employers should follow the detailed instructions that are part of the new form and should check that the employee follows those instructions when completing the employee portion of the form.
Neither the employee nor the employer should abbreviate any word on the form, and all dates should be written in the specified format. Mistakes may subject the employer to penalties, even when the employee made the mistake and the employer has followed the law in all other respects.
The new I-9 has two functional pages, rather than just one. With its instructions included, the form is nine total pages. The form has new optional fields for the employee’s phone number and email address — the employee may, but is not required, to give this information.
If an employee chooses not to provide a phone number or email address, the employee should write “N/A” in those fields. The form also includes a field for an employee’s foreign passport information, but this field will only be necessary in limited situations.
Avoiding penalties
Employers should only use this form for new hires. Existing employees do not need to complete the form again. Requiring an employee to fill out a new form unnecessarily could be considered discrimination, subjecting the employer to penalties that begin at $3,200.
Employers may not insist that an employee present a particular document or combination of documents as part of the I-9 process. Instead, employees may present any legal combination of documents. An employer’s insistence to the contrary may constitute illegal discrimination.
Employers must make the seven pages of instructions available to employees as they fill out I-9s but need not keep the instructions with the retained forms. Employers are not required to let employees take the instructions with them and may reuse copies of the instructions.
A Spanish version of the I-9 is available. This version may only be used as a translating aid in the rest of the United States and should never be completed by any employee outside of Puerto Rico.
Retention
Employers must retain the Form I-9 (and attach any copies of documents) for either three years after the employee’s date of hire or one year after the employment has ended, whichever is later. The form may be signed electronically and retained electronically — paper copies are not necessary.
Employers do not need to send the Form I-9 to any government agency but should be prepared to make retained forms available for inspection.
E-Verify
Employers should remember that even though there is a field for the employee’s Social Security Number, the employee is only required to complete that field if the employer uses E-Verify.
In Georgia, employers with more than 100 employees are required to use E-Verify to check the employment eligibility of new employees. On July 1, employers with more than 10 employees will be subject to the same requirement. Completing the Form I-9 does not relieve the employer of any E-Verify requirements.
Carson Penney practices employment law at HunterMaclean and can be reached at 912-236-0261 or cpenney@huntermaclean.com.
ON THE WEB
The new Form I-9 is available at http://www.uscis.gov/files/form/i-9.pdf. The new Handbook for Employers is available at http://www.uscis.gov/USCIS/Verification/E-Verify/E-Verify_Native_Documents/E-Verify%20Manuals%20and%20Guides/M-274-Handbook-for-Employers.pdf.